Plea Bargains and Wrongful Convictions

OnOctober 16, 2014, 30 year old Turnersville, New Jersey resident Michael Keating, was enjoying the brisk fall weather on his motorcycle. He came across an old house marked for demolition. Since childhood, Keating had a long fascination with exploring abandoned buildings. Easily entering the premises through an open back door, he looked around briefly, saw nothing of historical interest, picked up a discarded old stool, and soon departed.

Three hours later, back at his home, there was a sudden knock on the door. Police arrived from the neighboring town. Keating’s motorcycle had been spotted in front of an old abandoned house that suffered a fire.

Keating agreed to go down to the station. A simple questioning soon turned into an interrogation, “You started the fire, we know it, and we have witnesses.”

Keating knew nothing and refused to confess. The police became enraged. He was arrested, stripped naked, and swabbed for any evidence of smoke. Much to the chagrin of his interrogators, none was found.

With no physical evidence, it seemed the nightmare was over. Quite the opposite occurred. Frustrated at his refusal to confess, and a lack of evidence, the detectives locked Keating away in the Salem County jail.

Being innocent and thrown into jail cell is a terrifying experience. To turn up the pressure and coerce a confession, the police resorted to another tactic. Keating was celled with the worst of the worst: a woman killer charged with cold blooded murder: Harry J. Neher.

This was a downright violation of detention house rules. Suspects detained for heinous crimes are required to be isolated. Neher would later be sentenced to 40 years“for murder in cruel or depraved manner. (CNBnews.net/July 12, 2015) ”

Further coercion

When suspects refuse to confess, typically, police will pile on extra charges to compel a plea bargain.One of the firefighters sustained a slight injury, which according to newspaper reports, required stitches. Absurd as it may seem, Keating was charged with “purposely or knowingly placing a fireman in danger of death or serious injury.”

Firefighters are generally brave and very professional. Extinguishing fires is dangerous work and occasional injuries are unavoidable. According to Keating’s attorney, the injury was a small cut to the pinky finger. Trivial indeed, but the state was able to raise the charge against Keating from 3rd degree to 2nd degree arson. The difference is huge, 3rd degree arson is a probationary offense, 2nd degree is a 3-5 year prison sentence.

A Bargain with the Devil?

Defending oneself against wrongful charges is psychologically and emotionally taxing. Adding to this pain, is the great financial cost. Keating’s initial legal fee was $7,500 which only included services up to arraignment. To fight the charges in front of a jury would require at least $30,000 more. The entire cost could reach $60,000.

Assuming Keating and his family could raise such an astronomical fee, the second part of the horror story begins. Being assisted by professional legal counsel does not assure a verdict of not guilty. What if the jury were to buy the prosecution’s story? In all, Keating was being charged with five counts: (1)aggravated arson, (2) purposely or knowingly placing another person in danger of death or bodily injury, (3)arson, (4)burglary, and (5) failure to control or report dangerous fire.

Mortgaging ones family finances and then losing the case is a mortifying prospect. Five years parole versus three to five years in prison leaves little room for consideration. With little room for maneuver, Keating decided to accept the plea.

Fire and ire in the press

After arrest, the local (Gloucester County) prosecutor put out the following press release.

“Michael T. Keating was arrested Thursday (10/16/2014) on charges of breaking into and setting fire to a vacant home earlier the same evening. Keating, a furloughed employee of the Internal Revenue Service, was arrested at his home about 9 pm. (Wash Twp Man Arrested on Burglary, Arson Charges. Gloucester Country Prosecutor: 10/17/2014)

The media quickly seized the moment, and different outlets all sought to vilify the innocent suspect. Adding fuel to the fire was Keating’s employment background. He worked as an auditor/adjuster for the IRS.

The media took a lurid fascination with Keating’sIRS background. No less than seven news outlets quickly picked up and spread the story. The IRS is the most disliked and feared arm of the government.Apart from a tax refund, nobody wants to hear from them, police and prosecutors included.

As Keating refused to confess, and imbibing upon the media’s feeding frenzy, the prosecution issued a second press release. “At a bail hearing today, Keating …was served with an additional criminal complaint charging him with a fire that resulted in injury to a member of a Pitman fire company that responded to fight the fire.” The report once again described Keating as “a furloughed employee of the U.S. Internal Revenue Service.” (New Charge in Harrison Twp NJ Burglary, Arson. Gloucester Country Prosecutor: 10/24/2017)

IRS: the American ISIS?

Would this case have attracted the same attention ifKeating had instead worked for say the Department of Motor Vehicles? Or the National Park Service? Very unlikely.

Interestingly enough, Keating, was proud of his job. “My work began after April 15. As a tax examining technician, I would make adjustments to tax returns. The more severe job of “in person audits” was done by others.”

Keating even surprised this author with the scope of his work. “There are many grey zones when it comes to taxes. The public may think of the IRS as predatory. But that is not the case. We always give the benefit of the doubt to the filer.”

Still he was not naïve to the public’s perceptions. Commenting on the case in a legal document, he wrote, “Ask a million Americans what organization they most hate and fear, you’ll hear ISIS a lot less than you hear the dreaded IRS.” (“Michael Keating Oral Reply Response.” Submitted to the National Treasury Employees Union: Nov 18, 2015).

What really happened?

The fire was reported by two young caucasian couples aged 20-22. All gave statements to the police.

If Keating had the wherewithal to challenge the state’s case, he could have hired a a professional investigator. An investigator could probe the backgrounds of the so called witnesses. Did anyof them have prior convictions?Did any have experience as police informants? Were any facing charges which could be mollified by aiding the police in this case? We will never know.

Another disturbing factor is the extent to which the building was damaged. After being released on bail, Keating passed by the property. The front of the building looked exactly the same as before. He wanted to examine the rear area where the fire is said to have started, but felt a pang of terror and left.

Arson or Accident?

Wrongful convictions for the charge of arson abound in the USA. Former fire investigator Dr. Gerald Hurst, who offered opinions in many cases and passed away in 2015, often asserted, “If there is a fire and someone dies, the survivor will likely be charged with arson.” Most arson exonerations are cases in which the fire was later identified as being accidental.

Fortunately for Keating, nobody died in this fire. Might this case have been an accident? It is this author’s hunch that it was not an accidental fire. Keating’s motor cycle license number and a description of the bike were carefully noted. After Keating left the residence, the real pyromaniacs had a scapegoat.

Not the profile of an arsonist

Before trial, Keating received support from various people. His family physician Dr. Carl Vitola, Michael’s family physician since childhood, who also has special training in the behavioral sciences, offered a report. Dr. Vitola examined the profiles of many arsonists. He found that most develop a fascination with fire early in life.Keating, aged 30 at the time of the incident, had no previous arrests for arson.

The doctor also added that “arsonists are usually not well educated, and have lower than average IQ’s.” Keating has a B.A. in history and anthropology with honors from Rowan University. He is a member of the Environmental Committee of Washington County, and has long been active with Earth Day as well as wildlife protection activities-hardly the resume of an arsonist.

Dr. Vitola strenuously insisted that “the typical arsonist is hardly ever employed in a career which requires diligence and exactness. It would be extremely rare to find one in theemployment of the Internal Revenue Service.”

Fired after the fire

After his conviction, Keating was summarily dismissed. As a federal employee he was entitled to file a claim to regain his position.

The media captivation with an IRS employee charged with arson enraged the agency. An internal investigator made this quite clear. “News of your arrest, identifying you as an IRS employee, made the headlines in the newspaper and on the internet. The crimes you are charged with are serious.”

Being charged with a crime does not mean being guilty of a crime. This did not matter to the IRS. “News of your arrest has generated much negative publicity for our Agency. Lately, our image hasn’t been that stellar.”

An interesting and honest admission, quite rare in these days of government disinformation.Our nation’s tax receptacle, much like Hollywood, values image above much else. Truth and justice rank farther down the ladder.

A lesson from Japan

Comparative criminology is a popular and fascinating trend in the study of courts and justice. Americans like to believe that their criminal justice system is the fairest and most decent of all. International research has shown that America has a lot to learn from other countries-particularly in making punishments fit the crime.

One country America should look at is Japan. In September of 2009, a 40 year unemployed man- Kazuyoshi Okamoto, was arrested for breaking into a Tokyo apartment, stealing 1000 yen ($10), and setting the place on fire. He had a previous arson conviction.

Okamoto was tried in front of a Japanese jury-three judges and six laypeople. This is a new system which was introduced the same year as the alleged crime-2009. In contrast to the US, plea bargains cannot be officially offered, and serious crimes– arson being one, must be tried in front of a jury.

Lawyers east and west

Defendants who cannot afford counsel, be it the US or Japan, will have attorneys appointed. But one difference among the countries is the quality of those appointed.

The number of defendants in the US who have verdicts overturned due to ‘ineffective assistance of counsel’ is a bit shocking. The US has too many lawyers, and many who take on assigned criminal work do it less to uphold justice and more to put food on the table.

In complete contrast, becoming a lawyer in Japan is extremely difficult. In 2017, only 26% percent of applicants passed the bar exam. The attorneys appointed to represent Okamoto were competent professionals.

Perhaps the word “competent” is an understatement. In a shock to the prosecution, despite a previous conviction, Okamoto was found not guilty of arson. He was convicted only of the lesser crime of breaking, entering, and theft.

According to the verdict, “Though it is quite possible that that the defendant started the fire, it is also possible that a third party entered the premises and started the fire after the burglary (Nikkei Shinbun March 29, 2011). A first time offense would probably garner a suspended sentence, but due to his previous record, Okamoto was sentenced to one and a half years of penal servitude for the burglary.

Had Keating been arrested in Japan, at the worst, he might have been convicted of the same charge. But as a first time offender, and based on the paucity of evidence, he would likely have been charged with a misdemeanor.

When bad becomes worse

In the minds of some, Keating got off easy-he did not have to serve time in prison. But the conviction was crippling. In his own words, “I lost my very good job at the IRS. I lost my 401K, my retirement, my savings-everything.”

And then came financial damages. Keating was ordered to pay $22,000 in restitution to the owner of the building, though the building had already been marked for demolition. The insurance company of the firefighter also brought suit for $1200 to recover medical expenses for the injured finger.

Since being fired, Keating has applied for over 250 jobs. New Jersey,incidentally, is one state that has “banned the box.” In other words, those convicted of crimes need not state this on employment applications.

In the age of the internet, nothing is hidden from public view. Keating has been denied employment from fast food restaurants, pet day care centers, even landscaping companies.

He who wields the hammer

“I’d rather be a hammer than a nail.” The famous song lyrics crafted to a Peruvian melody and performed by Simon and Garfunkel still resonate today. And across the oceans as well. In Japan, every child is socialized to know that, “the nail that sticks up gets hammered”. Keating likewise has a prescient view of the American phenomena. Thrust into the role of a defendant, he now views prosecutors in a different light. “When your main tool is a hammer,” he opines, “everyone looks like a nail.”

Michael H. Fox is associate professor at Hyogo University in Japan,and director of the Network for Innocent Arson Defendants (www.niad.info).